Allahabad High Court
Sultan And Ors. vs Emperor on 30 August, 1929
Equivalent citations: 120IND. CAS.433
JUDGMENT
1. Sultan, Mohammad Baksh, Allah Baksh, Ismail, and Kala were committed to take their trial before the learned Sessions Judge of Muzaffarnagar under Section 368 of the Indian Penal Code. Bundu was committed under Section 368 of the said Code. The learned Sessions Judge-has convicted all of them and sentenced them to four years' rigorous imprisonment each.
2. The first five accused persons were charged with the offence of kidnapping Musammat Jamila, a girl, alleged to be under 16 years of age from the lawful guardianship of her father Mohammad Qazim with intent that she might be seduced to illicit intercourse. The offence is said to have been committed in Mauza Khudda in the District of Muzaffarnagar on or about the 5th of May, 1928.
3. Bundu was charged with the offence of wrongfully concealing Musammat Jamila in his house at village Dadheru for nearly two months from the 5th of May, 1928, with the knowledge that Musammat Jamila was a kidnapped girl.
4. There was considerable social disparity between Mohammad Qazim and the accused, the former being a Sheikhzada and the latter being Garhas by caste.
5. The case for the prosecution was that Musammat Jamila was an unmarried girl below 18 years of age, that she had twice eloped with Sultan during the temporary absence of her father from home, that the final elopement took place on the 5th of May, 1928, with Sultan and that the four other accused excepting Bundu were associated with Sultan in kidnapping the girl.
6. Sultan is the nephew of Mohammad Baksh. Allah Baksh and Mohammad Baksh's sisters are married in the same family. Bundu's uncle's daughter is married to Siddiq, the own brother of Sultan. Ismail alias Billi and Allah Baksh are close friends.
7. Qazim's household consisted of himself, his daughter Jamila and a step-daughter Musammat Mahfuzan, aged 10 or 11 years, who was given in marriage to Qazim's son Nawab. Qazim appears to have been a man with a religious turn of mind whose time was mostly spent in prayers and meditations and who did not take much interest in mundane affairs. The result was that there was no discipline in his household and Musammat Jamila was practically left free to sport as she pleased.
8. Sultan is a young man aged about 21 years. He lived in a house with an enclosure, next door to Qazim's. He had access to Qazim's house without any let or hindrance. No parda, was observed with him. Musammat Jamila and Sultan came to know each other about a year or six months before the alleged occurrence. They fell in love and their love grew into an infatuation.
9. One of the neighbours told Qazim about Sultan's visits. Qazim said " It does not matter". The voice of scandal was not silent but, "Qazim did not care for the talk in the village."
10. While Qazim was away at Saharanpur, Sultan took away Musammat Jamlia with him to Meerut and returned after three days, Musammat Jamila was dressed in male attire. The next day, Ghasita, brother-in-law of Qazim attempted to take Musammat Jamila to his house in Chhappar. He put her into a bullockcart but Sultan and Kala arrived on the scene. Kala caught hold of Ghasita and Sultan dragged Musammat Jamila away. She returned, however, at about 8 P.M. When this matter was brought to the notice of Qazim, he abused Musammat Jamila and took her to task. He also threatened to get her seducer and his confederates accordingly punished.
11. It is remarkable, however, that Qazim lodged no report to the Police nor instituted any complaint about either of these two incidents.
12. The last elopement took place the same day, namely, the 5th of May, 1928, after Qazim had left his house to say his Isha prayers. This infuriated Qazim. It is true that be did not make any report at the Police Station but a formal complaint was instituted in the Court of a Magistrate against the first five accused persons under Section 366 of the Indian Penal Code on the 12th of May, 1928. Qazim backed his complaint by his deposition, which was recorded on the 14th of May, 1928.
13. Qazim died under very tragic circumstances on the 7 th of July, 1928, and the question as to how he met his death is the subject of enquiry in the connected appeal.
14. The defence was that Musammat Jamila had been given in marriage to Sultan by Qazim himself, that she was over 16 years of age on the 5th of May, 1928, and that the offence of kidnapping under Section 366 of the Indian Penal Code had not been committed. Bundu denied having concealed Musammat Jamila in his house.
15. Musammat Jamila was examined in the case as a witness for the defence on the 4th of April, 1929. She says she is the lawful wife of Sultan and that her age is between 17 and 18 years.
16. The judgment of the Court below is a document of portentous length, teeming with repetitions, irrelevant matters and with many deductions, which are either illogical or are non sequitur. Now and again, ingenious attempts have been made either to explain away or to whittle down points which tell against the prosecution. This was absolutely unjustified and this minimises the value of a judgment which is otherwise a monument of industry. "What appears to have happened is that upon a consideration of certain features of the case, the learned Judge was morally convinced of the guilt of the accused; and this moral conviction warped his judicial vision to such an extent that he failed to view the evidence in its true perspective.
17. The learned Sessions Judge found that Musammat Jamila was not the wedded wife of Sultan, that she was below 16 years of age on the 5th of May, 1928, and that all the accused persons were guilty of the offence of which they stood charged.
18. It may be observed here that Section 366 of the Indian Penal Code is an aggravated form of Section 363 of the Indian Penal Code. The consent of the girl does not exonerate the seducer. The underlying policy of the section is (1) to uphold the lawful authority of parents or guardians over their minor wards, (2) to throw a ring of protection round the girls themselves and (3) to penalise sexual commerce on the part of persons, who corrupt, or attempt to corrupt, the morals of the minor girls by taking improper advantage of their youth and inexperience.
19. The learned Sessions Judge has given excellent reasons for holding that Musam mat Jamila was not married to Sultan. This finding is supported by the evidence of witnesses, who were in a position to know; and also by the probabilities of the case.
20. Mohammad Qazim, belonging as he did to the old school of thought, could never have dreamt to give his daughter in marriage to a Garha. It is difficult to conceive the idea of his officiating as Qazi on the occasion of his daughter's marriage.
21. Certain Qazi's registers have been produced, but they contain no entry in support of this marriage. Defendants witnesses have told a farrago of lies and have been rightly disbelieved by the Court below. We endorse the finding of the trial Court on this point and hold that there was no marriage.
22. There is no direct evidence on the record that Sultan or any of his four associates kidnapped Musammat Jamila. At the time of the alleged kidnapping, Qazim was away from home. Musammat Mahfuzan, the only other inmate of the house was in, another part of the house easing herself, Musammat Mahfuzan heard certain whispers. We do not know what these whispers were about. We do not know whose whispers they were. When she came inside the house, she discovered that Musammat Jamila was gone.
23. That Musammat Jamila eloped with Sultan is a settled fact. It is not unlikely that Musammat Jamila, in response to her own passion for Sultan singed her wings. It is equally probable that Sultan allured her with his signers voice. What part the other accused persons played cannot be predicated with certainty--the evidence on the point being vague and cloudy.
24. [Their Lordships referred to the evidence and continued: ]
25. It is unsafe in the highest degree to hold upon this evidence that Allah Baksh, Muhammad Baksh, Ismail and Kala joined Sultan in kidnapping Musammat Jamila.
26. It is not proved beyond reasonable doubt that Musammat Jamila was under 16 years of age on the 5th of May, 1928. Qazim's statements dated the 12th of May and the 14th of May, 1928, are statements as to age made by a deceased father but they are not admissible in evidence under Section 32 of the Indian Evidence Act.. The learned Government Advocate has failed to satisfy us that these two statements can be used as evidence under any section of the Indian Evidence Act. But these statements, even if admissible are not entitled to much weight, upon the double ground of not being free from the taint of partiality and from prejudice against the accused. Dr. Verma, the Civil Surgeon of Muzaffarnagar examined Musammat Jamila on the 3rd of August, 1928, and was of opinion that the girl had been used to sexual intercourse for sometime and that her age was about 16 years. On the 14th of August 1928, he appears to have examined the girl for the second time and he gave his opinion that the age of the girl might be 16 years or a little above or below. This statement is not of much value. If anything, it is more serviceable to the defence than to the prosecution.
27. Equally inconclusive is the deposition of Ghasita. He was not present at Musammat Jamila's birth. His wife was. He saw her when she was 5 or 6 months old. He does not remember how old Musammat Jamila was, when his daughter was born.
28. Bhura does not remember from what time Qazim had been living in Khudda or how long after Qazim's arrival at the village Musammat Jamila was born.
29. Rupram an ex-chaukidar of Khudda deposes to a daughter being born to Qazim during his incumbency. He is positive that he resigned his chaukidari 8 years ago and the daughter was born 5 or 4 years before Thus the daughter was born either in 1916 or 1917.
30. Reliance has been placed upon an entry in the register of births of thana Pur Qazi which shows that on the 20th of November, 1913, a daughter was born to Sheikh Muhammad Qazim of Khudda. Sheikh Muhammad Qazim is a, very common name. There is no reliable evidence that Sheikh Muhammad Qazim lived in Khudda in 1913. The entry in the register does not fit in either with the evidence of Rupram chaukidar according to whom the girl was born in 1916-1917 or with the statement of Muhammad Qazim which we have already referred to or even with the medical evidence.
31. It is impossible to hold on this kind of evidence taken singly or collectively that Musammat Jamila was below 16 years of age on the 5th of May, 1928. The charge, therefore, fails against all the accused persons including Bundu The evidence discloses that Musammat Jamila lived in the house of Bundu without the least attempt to conceal the fact. Musammat Jamila being over 16 years of age there could be no offence of kidnapping with reference to her. The case under Section 368 of the Indian Penal Code against Bundu, therefore, fails.
32. In the result we allow the appeal set aside the convictions and sentences and direct that Kala be immediately released and the other five accused persons be released unless they are wanted in some (sic).